(영문) 서울고등법원 2016.10.28. 선고 2014누65884 판결

The judgment that the Defendant’s order to pay penalty surcharges in attached Form 1 (Attached Form 1) issued by the Plaintiff on May 26, 2014 and the Defendant’s order to pay penalty surcharges in attached Form 2014-116 (Attached Form 2) issued on May 26, 2014 is revoked.

Reasons

1. Basic facts and circumstances of dispositions;

[Ground of recognition] Facts without dispute, Gap 2, 3, 4 evidence, purport of the whole pleadings

A. Status of the plaintiff, etc.

The plaintiff, Han Chang District Co., Ltd., Han Chang District Co., Ltd., a clean dyna company, and a new Pungung District Co., Ltd. (hereinafter referred to as "stock company" in the name of the company is omitted, and the above five branch offices are five companies such as the plaintiff et al.) are "business operators" under Article 2 (1) of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as "Fair Trade Act").

(b) A domestic white-market structure and price-fixing structure;

1) Classification of white paper

A) The white board is a multi-story, and is mainly manufactured on the middle floor by using a white gun on the letter or on the two sides, and by using a sealed paper on the outer floor or by using a chain pulp, etc., and is largely divided into a general white board and a high-class white board.

B) The largest difference between the general white paper and the high-class white paper is the difference between raw materials. The general white paper is manufactured by using 100% pulp in high-class white paper compared to the manufacture by mixing the notice and pulp in a fixed ratio according to the paper. Accordingly, the market price of high-class white paper is at least 1.5 times higher than the market price of the general white paper. The general white paper is mainly used as packaging materials for agricultural products, such as fruit, medicine, clothing, wrus and wrus, and grus, and is used as packing materials for high-class white paper, tobacco, mobile phones, etc., and the general characteristics and uses of each paper are as follows:

Characteristics and uses by species;

A person shall be appointed.

C) On the other hand, while the general white paper produces and sells all five companies, including the plaintiff, etc., high-class white paper is produced and sold only three companies, such as the plaintiff, Handoz and clean Ba (hereinafter referred to as "three companies such as the plaintiff, etc."), and Sejong (hereinafter referred to as "four companies such as the plaintiff, etc.") shall import and sell only three companies, and shall not sell new white paper.

(ii) the current status of competition in the white paper market;

A) Although Company A was involved in the domestic white paper market with five companies including the Plaintiff, it closed its business due to the deterioration of management in the latter part of the latter part of 2004, five companies, including the Plaintiff, etc., produced and sold most of the domestic white paper. The domestic sales volume of the domestic white paper sales in 2012 by five companies including the Plaintiff, etc. is 12% of the total domestic white paper sales volume, as it is merely 12% of the total domestic white paper sales volume.

B) The share of 2006 sales and sales base (referring to the share based on the sales of five companies, including the plaintiff, etc., the same shall apply hereinafter) of five companies, including the plaintiff, in the five companies’ domestic white paper markets, and the annual sales and sales base share from 2007 to 2012 are as follows.

Sales and market share in 2006

(unit: 00 thousand won)

A person shall be appointed.

The current status of sales and market share from 2007 to 2012

(unit: 00 thousand won)

A person shall be appointed.

The current status of sales and market share from 2007 to 2012

(unit: 00 thousand won)

A person shall be appointed.

C) In the case of classifying the domestic white paper market into the general white paper market and the high-class white paper market, five companies, including the Plaintiff, etc., from 2007 to 2012, including the annual sales and sales base share of five companies, including the Plaintiff, in each market, are as follows. In the general white paper market, the annual sales and sales base share of five companies from 2007 to 2012 are as follows. In the general white paper market, 38.6% of 2012, a clean yellow paper is 25.5% of 16.2% of the Plaintiff, a new wind paper is 12.2% of the price of the new white paper, and 12.2% of the price of the original paper is occupied by the Plaintiff in the traditional white paper market. In the high-class white paper market, 51.7% of the price of the original paper, 27.2% of the price of the original paper, 17.2% of the price of the original paper is occupied by the Plaintiff.

The current status of the sales and market share of general white paper from 2007 to 2012

(unit: 00 thousand won)

A person shall be appointed.

The current status of the sales and market share of general white paper from 2007 to 2012

(unit: 00 thousand won)

A person shall be appointed.

The current status of sales and market share of high-class white paper from 2007 to 2012

(unit: 00 thousand won)

A person shall be appointed.

(iii) price-fixing structure of white paper;

A) The selling price of the white paper is determined by multiplying the base price for each type of paper by the discount rate. The base price is determined differently for the end-user and wholesaler according to the distribution structure, and the discount rate is determined through negotiations according to the quantity, credit, transaction terms, etc. for each customer.

(b) The base price is determined by each subdivision as an end-user of the product price of a certain size by each subdivision, which is increased if a notice of the common cost share is raised at a reasonable level, and other short-term price fluctuations arising from yellow dust, price decline in other raw materials, inventory quantity, etc. are adjusted through a change in the discount rate.

1) Details of the corrective order and penalty surcharge payment order against the plaintiff et al.

The Defendant applied Article 21 of the Fair Trade Act to a corrective order on May 26, 2014; Article 22 of the Fair Trade Act to a corrective order on the ground that the Plaintiff’s five acts, including the Plaintiff, constitute Article 19(1)1 of the Fair Trade Act; Articles 22 and 5-3 of the Fair Trade Act to a penalty surcharge; Articles 9, 61 [Attachment 2] and 61 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 23527, Jan. 25, 2012; hereinafter “Enforcement Decree of the Fair Trade Act”); public notice on the detailed criteria, etc. for imposition of a penalty surcharge (amended by Presidential Decree No. 2012-25, Aug. 20, 2012; hereinafter “public notice of penalty surcharge”) to five companies, including the Plaintiff, [Attachment 1] to a corrective order and a penalty surcharge (hereinafter referred to as “prior payment order”), and the following details of the penalty surcharge imposed by the Plaintiff.

2) Collaborative act related to the general white paper of this case

A) Relevant sales

The relevant sales amount shall be 378,918,557,000 won, excluding value-added tax, among the sales amount of the entire general white paper from February 28, 2007 to April 13, 2012.

B) Base rate

In light of the fact that the collaborative act related to the general white paper of this case constitutes a light collaborative act that determines, maintains, alters, or limits the price, and the market share of five companies including the plaintiff, etc. exceeds 90%, the effect of restricting competition is apparent and efficiency arising from the nature of the collaborative act related to the general white paper of this case, and there is no effect of restricting competition, and the agreement to the incidental competitive factors such as the change of standards and the reduction of operation for the purpose of securing the effectiveness of price, etc., the general white paper of this case constitutes 7% of the notice of penalty surcharge shall be applied in consideration of the fact that the collaborative act related to the general white paper of this case is due to the excessive market structure of supply, the notice of main raw material, or the fact that the main raw material price is

C) Determination of criteria for calculation

The amount of 26,524,299,000 won (=378,918,557,000 won x 7%) calculated by multiplying the relevant sales by the base rate for imposition shall be determined as the basis for calculation.

(d) the first adjustment (mandatory adjustment penalty surcharges) in accordance with the elements of the act;

There is no reason for compulsory mediation against the plaintiff.

(e) the second adjustment (voluntary adjustment penalty) by an element of the actor;

Since it is recognized that a senior executive officer of the Plaintiff directly participated in the collaborative act of this case, 29,176,729,000 won (=26,524,29,000 won x 110%) is increased by 10%, the adjustment penalty surcharge shall be determined.

F) Determination of imposition penalty surcharges

In light of the recent economic aggravation, the 30% reduction is made in consideration of the fact that pulp, paper, and paper sales are significantly decreasing, the plaintiff's operating profit is decreasing, the average net income for the three years immediately preceding the date of deliberation is less than 10%, and 17,506,037,000 won has been reduced additionally, and the amount below 17,50,506,037,000 won has been discarded (=29,176,729,000 won x 60%) has been imposed.

3) As to the instant high-class white paper collaborative act

A) Relevant sales

The relevant sales amount shall be 20,374,290,000 won, excluding value-added tax, among the sales amount of the entire high-class white paper from July 31, 2007 to April 13, 2012.

B) Base rate

Since the collaborative act related to the high-class white paper of this case constitutes a "serious violation", 5% within the scope of the imposition standard rate of penalty surcharge notice shall be the imposition standard rate.

C) Determination of criteria for calculation

1,018,715,00 won (=20,374,290,000 won x 5%) calculated by multiplying the relevant sales by the imposition standard rate (=20,374,290,000)

(d) the first adjustment (mandatory adjustment penalty surcharges) by the element of the act;

There is no mandatory reason for the mediation against the plaintiff.

(e) the second co-ordination by an element of the actor;

Since the fact that the plaintiff's senior executives directly participated in the collaborative act of this case is recognized, 10% is increased, and since the plaintiff performed only the abstract role in the collaborative act related to the high-class white paper of this case, 30% is reduced to 814,972,00 won (=1,018,715,000 won x 110% x 70%) as the adjusted penalty surcharge.

F) Determination of the amount of charge imposed;

30% of the total net income for the three years immediately preceding the date of deliberation shall be reduced by 107,486,00 won (=814,972,000 won x 50%) in consideration of the fact that pulp, paper and paper business have been significantly decreasing due to the aggravation of competition. The plaintiff shall reduce 10% in consideration of the fact that the plaintiff's operating income has not been significantly effective on the market, and the plaintiff shall reduce the plaintiff's operating income by 10% in consideration of the fact that the weighted average net income for the three years immediately preceding the date of deliberation has been deficit.

4) The sum of penalty surcharges imposed on the Plaintiff

The final imposition penalty surcharge determined by adding up the penalty surcharge related to each collaborative act of this case and adding up the amount of less than KRW 17,913,00,000 is KRW 17,913,00.

Final Imposition Penalties

(unit: source)

A person shall be appointed.

D. Plaintiff’s application for reduction and exemption, Defendant’s reduction and exemption

1) On March 26, 2012, when the Defendant’s investigation into the instant collaborative act was underway, the Plaintiff applied Article 22-2(1)3 of the Fair Trade Act, Article 35(1)3 of the Enforcement Decree of the former Fair Trade Act, and Article 20 of the former Enforcement Decree of the Fair Trade Act (hereinafter referred to as “the notice of reduction or exemption”) to the Plaintiff among five companies including the Plaintiff, etc., the Plaintiff filed the second application for reduction or exemption, and subsequently submitted the confirmation of the collaborative act and the meeting minutes of industry meetings containing the fact of the collaborative act, price items, price list, base price list, work pocket book, etc. The Defendant exempted the Plaintiff from the order of reduction or exemption from the penalty surcharge (attached Form 17,913,00,000,000,000,000,000 won, on the ground that the Plaintiff actively cooperates in the investigation as above, and exempted the Plaintiff from the order of reduction or exemption from the penalty surcharge (hereinafter referred to as “the penalty surcharge”).

2) On June 20, 2014, the Plaintiff filed an objection with the Defendant seeking the revocation of the instant prior disposition, and the Defendant dismissed the Plaintiff’s objection under Article 2014-027 of the adjudication on September 15, 2014 (hereinafter “instant adjudication disposition”).

2. Whether the lawsuit regarding the revocation of the preceding disposition of this case is lawful

A. Relevant legal principles

If the Defendant: (a) committed an unfair collaborative act against a voluntary reporter or an investigative partner under Article 22-2 of the Fair Trade Act (hereinafter referred to as “prior disposition”); and (b) again, under Article 35(3) of the Enforcement Decree of the Fair Trade Act, made a disposition of reduction or exemption of penalty surcharges on the ground of voluntary report by separating the case against the voluntary reporter, etc.; (c) the subsequent disposition is final and conclusive to determine the amount of final penalty surcharges to be actually paid by the other party to the disposition including voluntary report reduction or exemption; and (d) it is reasonable to view that the prior disposition, if there is a subsequent disposition as a type of provisional disposition in which the aforementioned final disposition is scheduled to be taken, is absorption into the subsequent disposition and terminated. Therefore, in such a case, the lawsuit seeking revocation of the prior disposition is unlawful (see Supreme Court Decision 2013Du987, Feb. 12, 2015).

B. Determination

In light of the above legal principles, the prior disposition of this case is deemed to have been absorptioned into the subsequent disposition of this case, and thus, the part seeking the cancellation of the prior disposition of this case among the lawsuit of this case is unlawful since it is against the disposition which has already lost its validity.

3. Judgment on the claim for revocation of the subsequent disposition of this case

A. Determination on this safety defense

1) Summary of the argument

The Plaintiff sought revocation of the “instant adjudication disposition” in the complaint, but sought revocation of the “instant prior and subsequent disposition” through the correction of May 11, 2016, which constitutes an alteration of the purport of the claim rather than a correction of the purport of the claim. Moreover, since the amendment of the purport of the claim is the same as the filing of a new lawsuit, it shall be determined whether the period for filing a lawsuit expires on the basis of the submission of the amendment. As the claim seeking revocation of the subsequent disposition of this case is apparent in the record that the purport of the claim was modified 30 days after the date of receipt of the notice of the disposition, the claim seeking revocation of the subsequent disposition of this case shall be dismissed according

2) Determination

A) Facts of recognition

According to the records, the following facts are recognized:

(1) The instant subsequent disposition reached the Plaintiff on May 30, 2014, and the instant disposition reached the Plaintiff on September 18, 2014.

(2) On October 17, 2014, the Plaintiff filed the instant lawsuit, and the Plaintiff stated in the written complaint that “The Defendant’s order to pay penalty surcharges stated in the attached list that the Plaintiff had filed against the Plaintiff is revoked,” but attached the written ruling to the attached list of the written complaint.

(3) On April 12, 2016, the instant court ordered an order to prepare for the correction of the purport of the claim on the ground that the purport of the claim was not specified, and the Plaintiff, upon submitting the amendment on May 11, 2016, amended the purport of the claim as “the order to pay a penalty surcharge (No. 2014-14, 2014-116 of the Defendant’s decision) against the Plaintiff as of May 26, 2014, which was the order to pay a penalty surcharge (No. 2014-14, 2014-116 of the Defendant’s decision) that was issued by the Defendant on September 15, 2014.”

B) Specific determination

The correction of the purport of the claim refers to correction of the purport of the claim to the extent that is identical to that of the final and conclusive purport of the claim, and if the indication of the purport of the claim is removed beyond the limit of its identity, it constitutes a modification of the lawsuit. According to the above facts of recognition, the plaintiff expressed in the complaint that "the defendant must cancel all the order for the payment of penalty surcharges stated in the separate sheet issued by him/her against the plaintiff" from the beginning that "the defendant must cancel all the order for the payment of penalty surcharges stated in the separate sheet issued by him/her against the plaintiff." However, in attaching the separate sheet, it is recognized that the correction of May 11, 201 is merely a mistake to attach the written decision of this case. Thus, it is reasonable to regard the correction of the purport of the lawsuit as a correction of the purport of the lawsuit

As of the time of filing a lawsuit, the defendant asserts that the plaintiff filed an objection against the preceding disposition of this case, not the subsequent disposition of this case, and accordingly, the defendant dismissed only the objection against the preceding disposition of this case through the ruling of this case. Thus, in determining the time period for filing a lawsuit against the subsequent disposition of this case, "the day on which the original copy of the written ruling on the objection is served" as prescribed by Article 54 (1) of the Fair Trade Act cannot be counted from "the day on which the original copy of the written ruling on the subsequent disposition of this case is served". However, since the preceding disposition of this case was absorbed into a kind of provisional disposition which is scheduled for the subsequent disposition of this case, the illegality of the preceding disposition of this case exists in the previous disposition of this case. Thus, the illegality of the preceding disposition of this case exists in the previous disposition of this case, and therefore, it should be viewed that the illegality of the subsequent disposition of the subsequent disposition of this case includes a separate disposition in relation to the preceding disposition of this case, and therefore, the purport of the subsequent disposition of this case should be counted into the period for filing a lawsuit of this case.

Thus, the lawsuit of this case brought by the plaintiff on October 17, 2014 for which 30 days have not passed since September 18, 2014 when the plaintiff was served with the written ruling of this case was lawful. Thus, the defendant's principal safety defense is without merit.

B. Judgment on the merits

1) Summary of the Plaintiff’s assertion

A) Claim regarding the collaborative act in general white paper (the deviation and abuse of discretion when calculating the penalty surcharge)

(1) The illegality in calculating the relevant sales amount

(A) Time and termination date of the collaborative act in this case

The Plaintiff agreed to increase the price of the product since March 28, 2007, and thereafter agreed or agreed to the price increase of the product price, but it did not implement it or did not increase the agreed rate of increase to the half of the agreed rate of increase after 2009, thereby raising the price to the extent of half of the agreed rate of increase or reducing the rate of increase. However, the Defendant’s period of the collaborative act in this case was unlawful as of February 28, 2007. The Plaintiff finally clarified the Plaintiff’s intention to reverse the collaborative act on April 12, 2013.

(b) the scope of the product concerned;

Although there are many cases where the agreement was not implemented properly due to the increase of raw material cost, etc. among the agreements stated as a collaborative act in general white paper, it is unlawful to regard the collaborative act in this case as a single collaborative act and calculate the total sales amount of general white paper as related sales.

(2) Violation of the application of the imposition standard rate

In the event that the cost of raw materials is not increased, it was impossible to actually increase the price due to the characteristics of the general white paper market in excess of supply. Since the sale price of the general white paper has not been increased due to the collaborative act in general white paper, it was reduced to the level prior to agreement and the effect of restricting competition is not significant. Accordingly, in the case of an agreement that leads to the actual price increase, the profits that the plaintiff et al. can obtain were less or less. As a result, the agreement that leads to the actual price increase is due to the price increase of raw materials, the increase of the price of raw materials, the increase of the price of the internal market, and the violation that the general white paper collaborative act is weak. Therefore, it is unlawful to calculate penalty surcharges on the premise that the general white paper collaborative act falls under the "serious serious violation" of the general white paper market.

(3) Illegal in reducing realistic payment capacity

The part that appears to have generated net income for the year 2012 on the Plaintiff’s account book is merely 2010 if the allowance for bad debts related to energy business is re-written as the datum on the account book, and the Plaintiff actually incurred a net loss of approximately KRW 62.9 billion in the year 2013, and the procedures for the workout are being initiated from January 2, 2014 immediately after the completion of the deliberation on the instant subsequent disposition. In light of this, the instant subsequent disposition was deviating from and abused the discretion by failing to fully consider the Plaintiff’s financial situation and real ability to pay taxes.

B) Claim regarding high-class white paper collaborative act

(1) The non-existence of the collaborative act of this case

The Plaintiff did not have reached an agreement with other enterprisers on the high-class white paper price increase. Unlike other three companies, the Plaintiff does not directly produce high-class white paper and imports and sells high-class white paper, and the Plaintiff is merely aware of the act of exchanging information on the high-class white paper of other three companies at the place agreed on the general white paper. Even if the Plaintiff used it, it is not proven that the Plaintiff’s price increase is based on an agreement with other three companies or based on the presumption of agreement, in light of the difference between the type of high-class white paper agreed upon by other three companies on the price increase and the type of high-class white paper imported by the Plaintiff.

(2) A deviation from and abuse of discretionary power in calculating a penalty surcharge

In calculating the penalty surcharge against the plaintiff, the defendant violated the principle of proportionality and equality as follows, and abused discretion.

(A) The illegality in calculating the relevant sales amount

Since February 2009, the sale price of another three companies has been changed due to the independent move of the leading land around February 2009, and since February 2, 2009, the collaborative act was discontinued since February 2009, the plaintiff also should be deemed to have withdrawn from the high-class white paper collaborative act. Nevertheless, the defendant misleads the plaintiff that the high-class white paper collaborative act of this case continued until April 13, 2012, included all of the sales amount of the plaintiff's high-class white paper which occurred until that time in the relevant sales amount.

(B) Violation of the application of the imposition standard rate

In light of the fact that the Plaintiff’s active participation in the other three companies, rather than actively participating in the other three companies, the information is merely information easily known in the market, and the Plaintiff’s high-class white-market share in the market is not more than 3-4% of the profits that can be gained from high-class white-market collaborative acts, and that the collaborative acts in high-class white-marketing after 2009 are deemed to have been interrupted, it constitutes a violation with weak gravity. Therefore, it is unlawful to impose penalty surcharges on the premise that high-class white-market collaborative acts constitute a "serious violation."

The instant penalty surcharge payment order did not fully consider the Plaintiff’s financial situation and the actual ability to pay the penalty surcharge, thereby deviating from and abusing its discretionary power.

2) Relevant statutes

[Attachment 3] The entry is as follows.

3) Determination

A) Determination as to the assertion regarding the general white paper collaborative act

Whether to impose a penalty surcharge on a violation of the Fair Trade Act and when imposing a penalty surcharge, the amount of the penalty surcharge within a certain scope prescribed by the Fair Trade Act and the Enforcement Decree thereof is discretionary act. However, if there are grounds such as misunderstanding of facts constituting the basis for imposing a penalty surcharge in relation to the exercise of discretion or violating the principle of proportionality and equality, such misunderstanding of facts may be deemed illegal as a deviation or abuse of discretionary power (see Supreme Court Decision 2006Du4226, Feb. 15, 2008).

(1) Whether the calculation of relevant sales is lawful

(A) Time and termination date of the general white paper collaborative act

In cases where there was an agreement on price determination, etc. under Article 19(1)1 of the Fair Trade Act and an action based on such agreement, the date on which the unfair collaborative act is terminated means the date on which the action based on the agreement is terminated. Thus, in order for a part of enterprisers participating in the agreement to have terminated the action based on the agreement, an act contrary to the purpose of the agreement, such as expressing their intent to withdraw from the agreement explicitly or implicitly to other enterprisers, and setting the price at the level which would have existed without the agreement’s independent judgment. In order for all enterprisers participating in the agreement to have terminated the action based on the agreement, an act contrary to the purpose of the agreement, such as explicitly and explicitly rejecting the agreement, setting the price at the level which would have existed without the agreement, or setting the price at the level which would have actually been destroyed due to the repetitive price competition between the enterprisers, etc. (see, e.g., Supreme Court Decision 2007Du19584, Dec. 24, 2008).

In full view of the facts acknowledged earlier and the purport of the entire pleadings, it is reasonable to view that the Plaintiff Company B, prior to March 2007, decided to increase the selling price of the general white paper with other companies, at least since March 1, 2007, and thereafter, the Plaintiff continued to contact with other companies and agreed on the price of the general white paper, and subsequently, the Plaintiff expressed his intention to withdraw from the agreement of this case explicitly after April 13, 2012, which was after February 1, 2012, which was conducted by the Defendant, was conducted on an on-site investigation, and there is insufficient evidence to acknowledge that the Plaintiff committed an act contrary to the purpose of the agreement or the agreement was de facto reversed due to repeated price competition among the enterprisers. Accordingly, it is reasonable to deem that the period of the collaborative act of this case as February 28, 2007, and the termination period as April 13, 2012, and thus, the Plaintiff’s assertion related to this part of the sales amount is without merit.

(b) the scope of the product concerned;

According to Article 22 of the Fair Trade Act and Articles 9(1) and 61(1) [Attachment 2] of the Enforcement Decree of the Fair Trade Act, the defendant may impose upon an enterpriser who has engaged in unfair collaborative acts a penalty surcharge calculated based on the sales amount or equivalent amount of related goods or services sold in a particular business area during the period of violation, i.e., the relevant sales amount. In principle, the relevant sales amount shall be determined by referring to the financial data, etc. of the enterpriser. However, the scope of related goods or services, which are the premise of calculation, should be determined individually and specifically by taking into account the type and nature of the goods or services, which are directly or indirectly affected by the violation, their use and substitution potential, transaction areas, transaction stages, transaction stages, etc. (see, e.g., Supreme Court Decision 2012

Examining the facts acknowledged and the evidence mentioned above in light of the above legal principles, since the defendant's inclusion of the amount as the sales amount in the general white paper collaborative act in the relevant sales amount is recognized as having a direct or indirect impact on the violation, the plaintiff's assertion of this point is without merit.

(2) Whether the application of the imposition standard rate is legitimate

The degree of gravity of a violation caused by an unfair collaborative act shall be determined by comprehensively taking into account the degree of undermining competition order caused by the violation, the influence and ripple effect on the market, the degree of damage to the relevant consumers and enterprisers, and whether to acquire unjust enrichment (see Supreme Court Decision 2009Du15005, Sept. 8, 201).

In light of the following circumstances, Gap evidence 2 and Eul evidence 1's overall purport and arguments, i.e., the general white paper collaborative act of this case is likely to jointly increase the selling price by raising the standard price of the general white paper or reducing discount rates, and the total market share of five companies, including the plaintiff, etc. who participated in the collaborative act is above 90%, ii) the general white paper collaborative act continues for about five years, and the ripple effect of the market seems to have been very significant. 3) The five companies, including the plaintiff, agreed to the incidental competitive factors, such as the reduction of operation and change of standards, etc., in order to secure the effectiveness of the general white paper collaborative act, and monitoring the implementation of the agreement by disclosing the customer president, etc., it is sufficiently acceptable to determine the general white paper collaborative act of this case as "serious violation". Thus, the defendant's assertion that the plaintiff's general white paper collaborative act of this case constitutes a serious violation of the criteria for imposing the price increase of the plaintiff's raw material and raw material.

(3) Whether the reduction of realistic payment capacity is lawful

In light of the following circumstances acknowledged earlier and the overall purport of the pleadings, i.e., ① the average amount of net income for the immediately preceding business year, the previous business year, and the previous business year as of the date of deliberation on the disposition of the Plaintiff, ② the Plaintiff’s earned surplus for the year 2012 up to KRW 10.1 billion, ③ the Defendant has reduced the secondary adjustment penalty surcharge by taking into account the chilling of pulp, paper and paper sales business, as seen earlier, not only the Plaintiff’s operating profit has reduced, but also the reduced amount of the Plaintiff’s operating profit and bad debt exchange as of the date of deliberation when excluding the bad debt depreciation and bad debt exchange in the previous three years as of the date of deliberation, the Defendant cannot be deemed to have considered the Plaintiff’s practical ability to pay the penalty surcharge in the instant case, and thus, the Plaintiff’s decision to reduce the penalty surcharge by 10% after the commencement of deliberation on the disposition of this case cannot be deemed to have been unlawful.

B) Determination on the assertion regarding the high-class collaborative act in the white paper

(1) Whether high-class collaborative act exists

“Agreement on the act of jointly restricting competition” prohibited under Article 19(1) of the Fair Trade Act refers to the act by which multiple competitive enterprisers are bound by the same contents as each other, and imposes restrictions on the business activities to be conducted by their original decision-making. Such agreement does not require express agreement, and is sufficient to communicate with each other with intent to accept and assist in a certain act for the purpose of avoiding competition, and it includes an implied understanding even if it is implicitly made. Such agreement is the essence of communication among multiple enterprisers, so it cannot be deemed that there exists an external agreement, consistent with the acts enumerated in each subparagraph of the above provision, even though it cannot be deemed that there exists an external agreement as a matter of course, such agreement exists between multiple enterprisers. However, it can be deemed that there was an agreement where there is a circumstance to acknowledge the reciprocality of communication among enterprisers (see, e.g., Supreme Court Decisions 2012Du17421, Nov. 28, 2013; 2014Du36164, May 26, 20164).

According to the facts acknowledged earlier, Gap evidence Nos. 2 and 3, Eul evidence Nos. 1 through 5, 9-12 (including Serial numbers; hereinafter the same shall apply) and the purport of the whole pleadings, even if the plaintiff's market share (4.3%) in high-class white paper market is low, the plaintiff's business pocket book (7) on March 18, 2008 includes a phrase to estimate the rate of discount. The plaintiff's notice to the customer (10-1) on September 1, 2009 that the plaintiff sent high-class white paper Nos. 4 and 5% of high-class raw material price increase due to high-class increase in raw material price. Thus, it is difficult to recognize the plaintiff's participation in high-class collaborative act as well as high-quality collaborative act's market price increase by reducing the rate of discount compared to the plaintiff's general market price at the same time as high-class collaborative act. It is difficult to recognize that the plaintiff's new and high-class collaborative act was not related to the plaintiff's new collaborative act.

(2) Whether the calculation of the relevant sales amount is lawful (the termination date of the collaborative act in a high-class white paper)

Examining the following circumstances in light of the legal principles on the termination of collaborative acts as seen earlier, in light of the facts acknowledged earlier and the overall purport of evidence Nos. 2, 3, and 1 through 13 as well as the overall purport of the arguments, four companies including the Plaintiff, etc., including the Plaintiff, still engaged in a joint decision-making of high-class white paper sales price even after February 2009. Thus, this part of the Plaintiff’s assertion is without merit.

(A) On August 2007, 2007, four companies, including the Plaintiff, etc., who sold high-class bags in Korea, agreed to increase the selling price by means of raising the base price of high-class bags or reducing the discount rate, etc., and implemented the method of notifying each transaction party of the agreed matters, and monitor compliance with mutually agreed matters.

(B) The above agreement on the sales price of high-class white paper mainly was reached at a meeting that reached an agreement on the general white paper sales price. Five companies, including the Plaintiff, continued to hold a meeting of the head of industry headquarters, team leader, or the head of Daegu local government office from February 2, 2007 to November 201, and there is no dispute between the parties that there was an agreement on the general white paper sales price at each of the above groups. Meanwhile, D, as the head of the clean country headquarters, participated in each of the collaborative acts of this case as the head of the clean country headquarters, has reached an agreement with three companies, including the Plaintiff, on February 20 and April 20 of the same year. or around January 2010, the sales price of the high-class white paper was discussed about the general white paper sales price, and the high-class white paper sales price was also raised from around April 200 to April 20.

(C) Around October 209, the Plaintiff sent a document stating that the price of the high-class white paper was increased by 5% to each customer on September 16, 2009, and on August 31, 2009, the Plaintiff sent a document stating that the base price is increased by 5% to each customer. On February 22, 2010, a document stating that the price of the high-class white paper was reduced by 5% on February 12, 2010, which is clean, that the high-class white paper sales rate was reduced by 5% on March 25, 2010, and that the Plaintiff continued to apply the above discount rate to each customer on April 21, 201, the Plaintiff’s agreement that the high-class white paper sales rate was reduced by 5% on March 25, 2010, and that the Plaintiff applied the above discount rate to Plaintiff 201, 201.

(D) The Plaintiff asserted to the effect that, around February 2009, the price fluctuation rate or the time of price fluctuation in the species produced and sold by Han Chang Chang District, Hi- Q AB Class (Hi-PB Plus Class from February 2, 201 to Hi-PB Plus Class) that Han Chang District Co., Ltd. produced and sold Han Chang District, and RIV IV class produced and sold by a clean country is inconsistent, and thus, high-class white land collaborative act was de facto reversed at that time. However, it is not obvious that the trend of price fluctuation in each of the above types is insufficient to the extent that it is recognized that the collusion was de facto destroyed due to the price competition, etc. of other three different kinds, and there is no express or implied expression of intent or any act contrary to high-class white land collaborative act that the Plaintiff withdrawn from the high-class white land collaborative act of this case.

(3) Whether the calculation of penalty surcharge is lawful

(A) Whether the application of the imposition standard rate is legitimate

According to the aforementioned facts and evidence, high-class white paper collaborative act is an ordinary white paper collaborative act to increase the selling price of high-class white paper as well as a general white paper collaborative act, and the total market share of 4 plaintiffs, etc., who participated in the collaborative act, is more than 60% and the collaborative act continues for about 4 years and 9 months, and thus, competition-restricting effect is not small. Therefore, the defendant determined that the high-class white paper collaborative act of this case as a "serious violation" is also acceptable. Therefore, the defendant did not err in the misapprehension of discretionary authority in determining the imposition standard rate considering the content and degree of the high-class white paper collaborative act.

(B) Whether it is legitimate to reduce realistic payment ability

The defendant reduced 30% of the second adjustment penalty surcharge against the plaintiff in consideration of the decline of pulp, paper and paper sales business, and reduced the plaintiff's operating profit. In the event that the plaintiff excluded from the bad debt depreciation and bad debt recovery related to the development of the oil industry in the Kazakhnan as claimed by the plaintiff, an additional 10% of the average average net income per three years immediately preceding the date of deliberation shall be reduced, taking into account that the average weighted average net income per three years immediately preceding the date of deliberation is hostile, the defendant is recognized to have sufficiently considered the plaintiff's ability to pay the penalty surcharge in the determination of the penalty surcharge in this case, and the decision of the penalty surcharge shall not be deemed to be unlawful since the procedures for the workout have commenced against the plaintiff after the completion of deliberation on the subsequent disposition in this case

4. Conclusion

Thus, the part of the lawsuit of this case seeking the revocation of the preceding disposition is unlawful and dismissed. Since the subsequent disposition of this case is lawful, the remaining claims of the plaintiff are dismissed as it is without merit, and the costs of lawsuit are assessed against the losing plaintiff.

Judges

For the same purpose as the judge

Judges Singing on Board

For the purpose of judges

Note tin

1) SC(Sun Council Coated or Group Coated) is the representative of the general white paper, and the surface floor is made by using pulp and by using the latter and the middle floor notification.

2) ACB is mainly used as a package for agricultural products by SC 220 or 240 square meters (referring to the weight per unit area, the unit is g/m2; hereinafter the same shall apply) and is a name to be distinguished from the white paper for industrial products and is corresponding to SC.

3) IV (Ivory) is a paper manufactured by mixing the white chemical pulp and paper as a type of the general white paper, and the surface and back floor refer to the paper that consists of the structural frame. On the other hand, IV (IV) and IV special grade produced by the Plaintiff constitute the paper of the high-class white paper, not the general white paper.

4) TM (Toptila) is a package board as well as SC, and in the past, it is produced as a non-airated product in the past, but it has been recently produced as a Doated product.

5) GK (Gold) is a type similar to KB, Scul land, and CPH (competitive) with a letter-to-door white paper, and is mainly used as skin and skin stuff.

① GK: 한솔제지 제품으로 펄프와 고지를 혼합하여 제조하며, 염료를 사용하여 표면을 노랗게 염색 한 판지

(2) Manufacture by using pulse and notice that are not whiteed as a clean product of the KB.

③ SC황토지: 원고의 제품으로 황토를 이용하여 표면을 노랗게 염색한 판지

(4) CPH (Coated Pizza Hggr: Paper made using pulp that is not white as a sulpher product.

6) CBard is used as a product with a high pulp ratio (at least 50 per cent) in order to enhance the strength and be used as a package of cans and beverages.

7) The term “pre-amended by Presidential Decree No. 25503, Jul. 21, 2014” means the same.